This was an appeal in cassation against the judgment of the Rouen Court of Appeal, 10 November 1999). Hesnault instructed Cameroun Shipping Lines (Camship) with the transport of a container of goods from Le Havre (France) to Dakar (Senegal) on the Cam Iroko Express. The container fell into the sea during the voyage. Navigation et Transport and 12 other insurers indemnified Hesnault for its damage and, thus subrogated into its rights, sued Camship for compensation for the damage. The Court of Appeal granted their claim.

Camship criticised the judgment for having granted this request, when art 1.c of the Hague Rules, relating to the definition of the goods falling within the scope of the Convention, only excludes the application of the Convention when the deck carriage has been declared to the shipper. This article does not in any way make the regularity of carriage on deck subject to a declaration to this effect to the shipper. By deducing the irregularity of the carriage of goods on deck from the absence of a declaration mentioned in art 1.c of the Convention, and by deciding that the loading of containers on deck without prior authorisation from the shipper, or notice of intention to carry the goods on deck, constituted a fault on the part of the carrier, the Court of Appeal violated arts 1 and 3 of the Hague Rules.

Camship further argued that the absence of any precision in the Hague Rules on the consequences of the absence of express authorisation for the deck carriage by the shipper requires an assessment of the regularity of the loading on deck of the container with regard to art 22.2 of the Law of 18 June 1966, amended by the law of 21 December 1979, which specifies that the consent of the shipper is assumed to be given in the event of loading a container on board ships equipped with appropriate facilities for this type of transport. By refusing to assess the regularity of the deck carriage in relation to French law, the Court of Appeal violated the relevant provisions.

Held: Appeal dismissed.

The judgment notes that the carrier loaded the container on deck without prior authorisation from the shipper, or notice that the carrier intended to so carry it, and that the container was lost at sea during the voyage. It follows that the Hague Rules, ratified by France and Senegal, are exclusively applicable to this case, and not French domestic law. The Court of Appeal was entitled to find that the carrier had committed a fault by loading the container on deck without prior authorisation from the shipper.